OCDA announces new committee to examine policies on jailed informants

District Attorney Tony Rackauckas and his chief of staff, Susan Kang Schroeder, are shown in a 2010 file photo. REGISTER FILE PHOTO

District Attorney Tony Rackauckas and his chief of staff, Susan Kang Schroeder, are shown in a 2010 file photo.
REGISTER FILE PHOTO

Here’s a press release from the OCDA’s office.

The Orange County District Attorney’s Office (OCDA) announced today that a new independent, external committee has been created to thoroughly examine OCDA policies and practices regarding the use of jailhouse informants. The Informant Policies and Practices Evaluation Committee (IPPEC) is comprised of legal experts from outside the OCDA, including retired Orange County Superior Court Judge Jim Smith, retired Los Angeles County Assistant District Attorney Patrick Dixon, former Orange County Bar Association President Robert Gerard, and Blithe Leece, an attorney who specializes in ethics law and professional responsibility. Legal scholar and ethics expert, Professor Laurie Levenson of Loyola Law School, will serve on IPPEC as an advisor.

The creation of IPPEC follows a thorough in-house investigation conducted by the OCDA into legal questions raised concerning the use of in-custody informants and their effects on the rights of defendants who have been charged with crimes. The investigation resulted in policy and personnel changes to ensure that no material or technical violations of a defendant’s rights occur in the future. The changes include: new leadership and personnel; additional staff in the Gang Unit; new internal committee headed by District Attorney Tony Rackauckas to review and approve or disapprove the use of an in-custody informant in a criminal case; and an updated informant policy manual to establish new guidelines for the use of informants.

The IPPEC has already begun their investigation and plans to release a detailed report by the end of 2015, with recommendations to improve the current use of in-custody informants.

“I think it’s important to have an objective and expert external committee, with different points of view, to thoroughly review and analyze the issues regarding the use of in-custody informants so we can improve our procedures and avoid any future mistakes,” said District Attorney Rackauckas. “I want the public, the bench, and the bar to know that our prosecutions of murderers and violent criminal street gang members are tough but fair.”

Legal Authority for Use of In-Custody Informants

For as long as there have been police officers, informants have been used to help combat crime. Without informants, many of the more serious and violent crimes would remain unsolved and criminals threatening the public safety would not be brought to justice. The Supreme Court has acknowledged, “The informer is a vital part of society’s defensive arsenal.” McCray v. Illinois (1967) 386 U.S. 300, 307. Likewise, Judge Learned Hand wrote, “Courts have countenanced the use of informers from time immemorial; in cases of conspiracy, or in other cases when the crime consists of preparing for another crime, it is usually necessary to rely on them or upon accomplices because the criminals will almost certainly proceed covertly.” United States v. Dennis 183 F.2d 201, 224 (2d Cir. 1950).

Often, the criminal justice system requires balancing of competing interests, including in the area of informants. Recognizing that the use of informants is a legitimate law enforcement practice, California law provides protection to those who provide information to law enforcement. Evidence Code section 1041 codifies a long-standing legal privilege protecting the identity of informers. As held by the California Supreme Court, by means of section 1041, “The informer is thus assured of some protection against reprisals.” People v. McShann (1958) 50 Cal.2d 802, 806. On the other hand, criminal defendants have their own constitutional rights. These rights include due process of law and the right to a fair trial. Sometimes, an accused’s right to a fair trial will require that an informant’s identity be disclosed.

Prosecutors and police officers have a duty to ensure that all criminal defendants’ rights are protected. Public trust in the criminal justice system can erode if law enforcement’s use of informants does not conform to legal standards. Therefore, it is imperative that police and prosecutors in Orange County use informants only in a lawful manner.